Canada: "My House Just Burned Down, And I Don’t Know When I Will Be Back At Work"

Is an employer entitled to take the position that an employee has resigned if she advises that she does not know when she will be returning to work (as a result of a significant personal crisis) and fails to stay in contact with the employer in the ensuing weeks? This issue was recently considered by the British Columbia Supreme Court in Beggs v. Westport Foods Ltd .1

In Beggs, the employee's home was destroyed by fire in February, 2010. The following day, the employee telephoned the employer to advise of the fire and said that she would not be coming into work and did not know when she would return. Over the next month, the employee was consumed with sorting out her insurance claim, finding a place to rent and arranging for her home to be replaced. During this period the employer tried to contact the employee on two occasions, but her phone was disconnected. As a result, the employer prepared and filed a Record of Employment indicating the employee had quit.

In early April, the employee was diagnosed with severe depression and obtained a note stating that she was unfit to work. When she contacted the employer to advise of her medical leave, she learned about the ROE. She attended at the employer's premises, and was given a copy of the ROE for the first time, and her final pay.

After the employee obtained legal counsel, the employer advised the employee through its counsel that she could return to work, and upon her return the employer would "advise her regarding her work schedule and her employer's expectations regarding the job".

The employee never returned to work. Instead, she commenced a lawsuit alleging wrongful dismissal. In response, the employer argued that the employee had resigned and, further, had acted unreasonably in failing to return to work when invited to do so.

The court sided with the employee, concluding that the evidence did not establish a clear and unequivocal resignation, and that she had in fact been terminated by the employer. Further, the court held that the offer to return to work was ineffective, because it did not make clear to the employee that she was being offered her old job back on the same terms and conditions.

The court awarded the employee, who had worked for the employer for 10 years, 11 months' pay in lieu of notice. Significantly, the court also required the employer to pay $20,000 in compensatory damages for breaching its duty of good faith in the manner of termination. Here, the court was troubled by the fact that the employer had not made genuine efforts to determine the employee's status (her phone was only disconnected for a short period of time), and instead issued the ROE stating she had quit, which might have jeopardized her ability to receive EI payments. In making the award, the court concluded the employer's conduct had exacerbated the anxiety and depression which the employee suffered following the loss of her home.

Beggs illustrates the dangers of taking the position that an employee who fails to report to work has quit, even where the employee is absent for many weeks and unreasonably fails to communicate with the employer about his or her status. Here, the employer made several mistakes: not doing more to reach out to the employee (including advising that it had filed the ROE), and not taking her back unconditionally when it learned of her medical condition.

Where an employee fails to stay in touch, an employer must make all possible efforts to speak to him or her, and tell the employee that it will be taking the position the employee has resigned if the employee does not contact them or otherwise return to work in a reasonable time. Assuming the employee has quit (without speaking to the employer) may seem a convenient solution, but as Beggs indicates, it is a risky one. After reaching out to an employee, only after a reasonable amount of time has passed and the employee has not returned to work, will an employer have a plausible argument that the employee has resigned, or has abandoned his or her employment. However, in cases where the absence was in any way related to a medical issue, the safest course is typically not to take that position at all and instead reinstate the employee, or place him or her on a medical leave.

Footnote

1 2010 BCSC 833 (CanLII).

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